作者：黄京平
作者介绍：中国人民大学法学院教授
出版日期：2017年10月9日
内容提要 从宽处理,是兼具实体法和程序法意义的法律术语。从宽处理的依据,包括既有法律规定和准立法性质的特别规定。作为实体从宽依据的量刑规则,除具有法律约束力的规范外,主要是具有事实约束力的地方量刑细则或地方特别细化规则。认罪的成立,以"如实供述"不影响司法机关的定罪量刑判断为基本标准,"认事服判"成立最狭义的认罪。宣告缓刑和免予刑事处罚应作为控辩协商的内容,并适当提高适用率。狭义的认罚,不必获得过多的量刑减让,甚至不必单独给予量刑减让;广义的认罚,由不同形式、不同程度的民事赔偿和解构成,具有实现案结事了的功能,对从简程序的适用和从宽幅度的选择具有决定性影响。
关键词 认罪认罚 从宽量刑 事实约束力
Abstract: Lenient discretion in the criminal punishment is a legal term concerning substantive and procedural law. The basis of lenient discretion includes statute law and quasi legislative special provisions. The sentencing rules which play the important roles in the substantial lenient punishment consist of two basic compositions: the statutory norms and the local detailed rules or special interpretation norms which have factual influence on sentencing procedure. The basic standard of admission of guilt lies in that the judgment of conviction and sentencing cannot be affected by the confession of the suspect. In other word, acknowledgment of committing crimes and acceptance of any reasonable punishment can be considered as the admission of guilt in the narrowest sense. The probation and exemption of criminal penalties shall be used as the conditions of the negotiation between the prosecution and the defendant, and the application ratio shall be improved appropriately. Acceptance of any reasonable punishment in a narrow sense should not be given too much penalty reduction or even be given the reduction separately. But acceptance of any reasonable punishment in wide sense which consists of civil compensation and reconciliation with different forms and degrees plays the functional roles both in verdict and appeasing complaints, and also has the decisive effect on the application of summary procedure as well as the choice of the degree of lenient discretion.